Close ties with First Nations key to Canadian mining success – Fontaine – by Simon Rees (MiningWeekly.com – January 29, 2013)

TORONTO (miningweekly.com) – Few mining companies developing Canadian projects within First Nation (aboriginal) territory would do so without seeking to build a close working partnership.

Those who disregard or downplay the importance of First Nation consultation will find their projects languishing in a legal quagmire. Stemming from this, there can be a train of negative publicity, while subsequent and inevitable delays then dent potential investor confidence and shareholder opinion.

So why do some mining companies still make elementary mistakes in relation to First Nation communities? How can these be avoided and what are the best methods for fostering a close working relationship? If disputes do arise, what are the best methods to seek a fair and mutually-rewarding resolution?

Norton Rose’s senior advisor Phil Fontaine has a wealth of expertise within the field of advising mining companies how to build bonds with First Nations communities and how to construct strong and lasting partnerships. As a former National Chief of the Assembly of First Nations (a post he held three times), Fontaine has also been instrumental in raising First Nations rights issues across Canada.

“The working environment has changed significantly,” he told Mining Weekly Online. “Even in the recent past there was no requirement to talk with First Nations communities. For example, in Ontario, mining exploration was based on the free entry system, while the province’s mining act dated from the 19th Century. There was simply no need to engage with the First Nations at any level.”

Yet in recent years, particularly over the past decade, mining laws across Canada are being revised to reflect First Nations rights. Unfortunately, there are some companies that still fail to update best practices, Fontaine said.

“One could argue that some companies don’t know the law clearly enough, while many others have failed to appreciate the unique interests of the First Nations community or sought to understand their values, traditions and culture,” he added. “Remember every community has a right to say no and a right to say yes [to a project].”

Companies using methods from the past will flounder and, given today’s climate in Canada, flounder fast. “Given the new understandings and new requirements, including the duty to consult, some might claim these are costs, but they should be considered an investment,” Fontaine stressed.

Success comes through understanding, he said. “Successful mine development depends on understanding the laws and the legal requirements, including the duty to consult with the First Nations. And when we talk about consultation it goes beyond picking up a phone and simply saying: ‘Hello; I’m from mining company X’. Consultation means a true, often long-term, engagement with the First Nation community or communities that may be affected by a project,” he said.

Beyond the initial meeting, Fontaine adds that a company should always ensure personal interaction is maintained throughout a mine’s development process. At every step, a company should also remember that the First Nations communities are the long-term legal custodians of the project’s land; they will still be there long after the mining project is complete.